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NATIONWIDE MUT. INS. CO. v. DYNASTY SOLAR

October 30, 1990

NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff,
v.
DYNASTY SOLAR, INC., et al., Defendants



The opinion of the court was delivered by: CONTI

SAMUEL CONTI, UNITED STATES DISTRICT JUDGE

 This action involves an insurance coverage dispute. Plaintiff Nationwide Mutual Insurance Company ("Nationwide") seeks a declaratory judgment regarding its duty to defend and indemnify various defendants involved in two separate state court actions. The underlying actions have been referred to throughout this litigation as the " Onoshi " suit *fn1" and the " Berry " suit. *fn2" Previously, the court granted partial summary judgment as to Nationwide's coverage obligations in both cases. *fn3" More recently, the court denied a motion to intervene by the plaintiff class in the Berry suit. The court now has before it a second Nationwide motion for partial summary judgment in which the insurer seeks a declaration that its coverage for "advertising injury" creates no duty to defend or indemnify any defendant in the Berry suit.

 BACKGROUND

 As this motion concerns only the Berry suit, the relevant defendants here are certain corporate entities, as well as individuals believed to be employed by or affiliated with such entities, collectively referred to as "Dynasty". *fn4" The Berry suit involves a plaintiff class action against Dynasty and others for alleged fraudulent and unfair sales practices, violations of federal and state statutes regarding door-to-door sales, and other claims against Dynasty and various lending institutions arising out of Dynasty's sales of solar heating systems. More particularly, the Berry plaintiffs are a group of consumers who purchased heating units from Dynasty and claim that Dynasty engaged in deceptive and misleading practices with respect to those sales.

 
The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of personal injury or advertising injury to which this insurance applies. . . .

 (emphasis added; original emphasis omitted). "Advertising injury" is later defined in the primary policies as:

 
injury arising out of an offense committed . . . in the course of the named insured's advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition, or infringement of copyright, title or slogan.

 (emphasis added). Both umbrella policies further provide that:

 
"advertising offense" means liability for damages which occur during the policy period arising out of the Named Insured's advertising activities for:
 
1. libel, slander and defamation;
 
2. infringement of copyright or of title or of slogan;
 
3. piracy or unfair competition or idea misappropriation under an ...

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